JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES. 1. TRADE-MARks-Decree of THE CIRCUIT COURTS OF APPEALS ARISING UNDER ACT OF FEBRUARY 20, 1905-REVIEWABLE BY SUPREME COURT ONLY ON CERTIORARI. Judgments and decrees of the circuit courts of appeals arising under the Trade-Mark Act of February 20, 1905, are reviewable by the Supreme Court only on certiorari and not on appeal or writ of error. Appeals in such cases are not allowed under section 128 of the judicial code. **Street and Smith v. The Atlas Manufacturing Co. et al. 353. 2. SAME-SAME-SAME.-The intent of Congress, as indicated in the provisions of the judicial code relating to the jurisdiction of the Supreme Court, was to extend rather than contract the finality of decisions of the circuit courts of appeals. By the act of February 20, 1905, Congress placed trade-mark cases arising under that statute upon the same footing as cases arising under the patent laws as respects the remedy by certiorari under the Circuit Court of Appeals Act. **Id. LABELS. See Infringement, 7; Prints and Labels. SUBJECT-MATTER-REGISTRATION.-Where the matter presented is properly a label and is distinctively original, Held that the statute does not deny registration because the feature thereof which imparts originality is used or is capable of being used as a trade-mark. Ex parte Wahrmann, 67. LIMIT OF APPEAL. See Priority of Invention, 18. LIMIT OF TIME. See Appeal to the Court of Appeals of the District of Columbia; Priority of Invention, 20. LIMITATION OF CLAIMS. See Construction of Claims, 10, 13, 14, 17, 20, 23, 24, 25, 26; Construction of Specifications and Patents, 6, 7; Particular Patents, 7, 12; Pioneer Invention. LIMITATION OF PATENTS IMPOSED BY THE UNITED STATES PATENT OFFICE. See Particular Patents, 8; Reissues, 1. MACHINE. See Abandoned Experiments; Anticipation, 3; Combination; Construction of Claims, 10, 11, 14; Earlier and Later Patents; Infringement, 11, 14. MANDAMUS. See Interference, 9; Public- Use Proceedings. 1. CANNOT TAKE THE PLACE OF AN APPEAL.-It appears at once that appellants overlook the fact that mandamus cannot be made to perform the function of an appeal or writ of error and ordinarily will not be granted if there is another legal remedy. *United States, ex rel. Dunkley Company and Dunkley, v. Ewing, Commissioner of Patents, 186. 2. DOES NOT LIE TO REVERSE JUDICIAL DECISION OF COMMISSIONER OF PATENTS.—Where the relator made application to the Commissioner for leave to intervene in an interference proceeding and the application was denied, Held that a mandamus will not lie to compel the Commissioner to reverse his decision duly made in the discharge of his official duty. *United States, ex rel. Trussed Concrete Steel Company, v. Ewing, Commissioner of Patents, 194. 3. GIVING EFFECT TO A DECREE OF A COURT.-Where the relator had obtained a decree from a United States district court enjoining F. from alienating any interest he might have in certain applications and the relator urges that a writ should be issued to compel the Commissioner to recognize and give effect to the decree, Held that in the remedies open to relator that adjudication can be availed of in so far as it may be beneficial to it, but that the Commissioner acts in these matters in a quasi-judicial capacity, and while he may err in not following the adjudications of a certain question by the courts his judgment cannot be controlled by mandamus simply because it is in conflict with the decision of a court. [*Id. MECHANICAL SKILL. See Construction of Claims, 16; Patentability, 1. MONOPOLIES. See Construction of Statutes, 1; Copyrights. of the District of Columbia, 2. See Appeal to the Court of Appeals MOTION TO DISSOLVE INTERFERENCE. See Appeal, 1. 1. APPLICANT AND PATENTEE-MOTION BY PATENTEE TO DISSOLVE ON GROUND THAT ISSUE IS NOT PATENTABLE-SHOULD NOT BE TRANSMITTED. -Where a patentee moves to dissolve the interference in which he is involved on the ground that the issue is not patentable, Held that such a motion should not be transmitted, since otherwise the patentee could contend in this Office that the subject-matter of the patent is not patentable and in the courts that his patent is valid. (Baltzley v. Seeberger, C. D., 1905, 120; 115 O. G., 1329, overruled.) [Manson v. Hutchison, 33. 2. SAME SAME-SAME.-Where T., a patentee, moves to dissolve the interference on the ground that the issue if construed broadly enough to read upon the application of H. would not be patentable, but that if properly construed so as to read only upon T.'s patent would be patentable, Held that such a motion should not be transmitted. (Manson v. Hutchison, ante, 33; 201 O. G., 569.) [Morgan v. Taylor v. Hanson, 90. MOTION TO STRIKE OUT EVIDENCE. See Suits for Infringement, 2. NEW RESULTS. See Combination; Patentability, 4; Rejection of Claims, 1. NOTICE OF APPEAL. See Appeal to the Court of Appeals of the District of Colum bia, 2. NOTICE TO COUNSEL. See Evidence. OATH. See Interference, 10. OBJECTION. See Appeal, 2; Evidence. OLD ELEMENTS. See Combination: Particular Patents, 14. OLD MATERIAL. See Invention, 1. OLD RESULTS. See Anticipation, 3; Combination; Construction of Claims, 3; Invention, 1; Rejection of Claims, 1. See Construction of OPERATIVE DEVICE. See Construction of Claims, 22. OPPOSITION TO REGISTRATION OF TRADE-MARKS. Trade-Mark Statutes, 12; Similarity of Marks, 1, 2. 1. NAME OF OPPOSER-SHOWING OF DAMAGE NOT NECESSARY.-"Where the name of an 'individual, firm, corporation, or association' is sought to be registered, as in this instance, the right of opposition is statutory, and proof of actual damage is not required. Neither is it important that appellant had not engaged actively in the business for which it was alleged it was incorporated. It is not the business which the statute in this particular aims to protect. It is the corporate name, and it is sufficient that possible damage may be inferred from invading the property right which the corporation possesses in its name." *The Asbestone Company v. The Philip Carey Manufacturing Company, 146. 2. NON-TECHNICAL-USE.-Where the opposer has used the words "Cluett, Peabody & Co., Troy, N. Y." on boxes and packages containing men's outer shirts and collars in the usual and regular order of business, but not on the shirts and collars themselves, Held that this use of the word "Troy" is not a trade-mark use, as it is merely an incident to the opposer's location and does not distinguish the product from that of other shirt and collar manufacturers of the same city. *Tim & Co. v. Cluett, Peabody & Co., 183. OPPOSITION TO REGISTRATION OF TRADE-MARKS-Continued. 3. SAME INTEREST.-Where an opposition is filed to the registration of the word "Troy" under the ten-year clause and it appears that opposer has not used the word "Troy" as a trade-mark, but merely to inform the public that its place of business is at Troy, N. Y., Held that opposer has failed to show such an interest in the mark as entitles it to be heard. *Id. OWNERSHIP. See Construction of Trade- Mark Statutes, 7, 10, 11; Infringement, 5; Priority of Invention, 10; Renewal of Trade- Mark Registration. PARTICULAR PATENTS. See Pioneer Invention, 1. 1. CHRISTY-No. 648,897-Box-Car Loader-Validity and InfringemENT.— Ottumwa Box Car 2. EVANS-No. 815,914—WINDow-Lifter-Validity and Infringement.—The Evans patent, No. 815,914, for a window-lifter, construed and Held sufficiently specific to cover a structure erected in the particular manner shown in the drawings; also Held valid and infringed. Jones v. Evans, 262. 3. FELL—No. 888,984-MECHANISM FOR RIFLING PIPES OR TUBES-VALIDITY and InfringemENT.-The Fell patent, No. 888,984, for apparatus for rifling pipes or tubes, was not anticipated, discloses patentable invention, making a distinct and valuable advance in the art, and its claims are entitled to a fairly broad construction; also Held infringed as to claims 1, 2, and 3. National Tube Co. v. Mark et al., 310. 4. FELT NO. 628,176-Tabulator-MachiNE-ABANDONMENT OF INVENTION.— Where the evidence showed that the invention disclosed in the Felt Patent No. 628,176 was completed in 1890, but was deliberately cast aside by its owner and no further action taken for eight years, during which time other inventors had entered the field and exploited the idea exemplified in this device, Held that the invention was abandoned and the patent void. *Comptograph Company v. Adder Machine Company, 153. 5. SAME-No. 568,021-PRINTING AND CALCULATING MACHINE-PATENTABILITY.—The Felt Patent No. 568,021, for a printing and calculating machine, claims 47, 48, 49, and 52 Held invalid in view of the prior art. *Id. 6. SAME-No. 661,121-CALCULATING-MACHINE-INFRINGEMENT.-The Felt Patent No. 661,121, for a calculating-machine, claims 37, 38, 39, and 40 construed and Held not infringed. *Id. 7. Greth—WATER-PURIFYING APPARATUS-No. 775,901—VALIDITY AND INFRINGEMENT.—The Greth patent, No. 775,901, for a water-purifying apparatus, claim 11, as differentiated from most of the other claims, is not limited to a combination calling for separate compartments in which the lime treatment and the soda treatment are carried on, but has for its principal element the specific battery of independent-unit filters described, each of which can be cut off for cleaning without affecting the others, used in combination with a settling-compartment and a chemical-treating compartment, broadly specified, which may or may not be subdivided. As so construed the claim was not anticipated and discloses patentable invention; also Held infringed. Wm. B. Scaife & Sons Co. v. Falls City Woolen Mills, 236. 8. KENNEDY-No. 11,907-(ORIGINAL No. 631,525)-Wardrobe-Validity of REISSUE INFRINGEMENT.-The Kennedy reissue patent, No. 11,907, (original No. 631,525) for a wardrobe, is void in so far as its claims are broadened to include other forms of construction of the extensible garment-hanging racks or slides than the one to which the original patent was expressly limited in the course of the proceedings in the Patent Office. Limited as it must be to the specific structure of the original patent, also Held not infringed. Grand Rapids Show Case Co. v. Baker et al., 294. PARTICULAR PATENTS-Continued. 9. POPE-No. 805,153-TRANSFER TICKET-VALIDITY AND INFRINGEMENT.-The Pope patent, No. 805,153, for a time-limit transfer-ticket for use by streetrailroads, etc., was not anticipated and discloses patentable invention; also Held infringed. Cincinnati Traction Co. v. Pope, 216. 10. TESLA-Nos. 445,207, 511,915, AND 555,190-ANTICIPATION.-Patent No. 555,190, to Tesla, for a combination or apparatus to practise the process secured to Tesla by Patent No. 511,915, is not anticipated or avoided by the latter. Patents Nos. 555,190 and 511,915 are not for the same invention as Patent No. 445,207, to Tesla, and neither of them is anticipated or avoided thereby. Century Electric Co. v. Westinghouse Electric & Mfg. Co., 267. 11. Same-Nos. 511,599, 511,915, and 555,190-THOMSON et al., No. 399,801— THOMSON, No. 428,650-INFRINGEMENT.-Claim 1 of Patent No. 511,559, claim 1 of Patent No. 511,915, and claims 1, 2, and 6 of Patent No. 555,190, to Nikola Tesla, regarding electrical transmission of power, are valid, and the defendant's device, which it claims follows the combinations secured by Patent No. 399,801, to Thomson and Wightman, and Patent No. 428,650, to Thomson, is an infringement thereof. Id. 12. VANDERVELD-No. 825,362-ARTICLE-SUPPORT FOR WARDROBES-INFRINGEMENT.—The Vanderveld patent, No. 825,362, for an extensible article-support for wardrobes, as limited by the prior art, Held not infringed. Show Case Co. v. Barker et al., 294. Grand Rapids 13. VICTOR-No. 863,120-GEARING FOR WASHING-MACHINES-VALIDITY AND INFRINGEMENT.-The Victor patent, No. 863,120, for gearing for washingmachines, the principal feature of which is the relieving of the tub-cover of the load of the operating mechanism, and thus reducing its weight when raised to a negligible quantity, was not anticipated, and discloses patentable invention; also Held infringed by the device of the Van Wormer patent, No. 939,645, Horton Mfg. Co. v. White Lily Mfg. Co., 285. 14. WELIN-NO. 825,784-AUTOMATIC PIANO-PLAYER.-The Welin patent, No. 825,784, for an automatic playing attachment for musical instruments, is not void on its face either for lack of patentable novelty or as an aggregation of old elements. Krell Auto Grand Piano Co. of America v. Story & Clark Co. et al., 246. PATENTABILITY. See Combination; Construction of Claims, 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 15, 16; Designs; Infringement, 1; Interference, 3, 4; Invention; Motion to Dissolve Interference; Particular Patents, 3, 7, 9, 14; Priority of Invention, 10; Rejection of Claims, 1. 1. RESULT MECHANICAL SKILL.-"Patentability will often be presumed from the fact that a device, though apparently disclosing but the mere exercise of mechanical skill, produces a result long sought after, but for the first time attained." *In re Merrill, 113. 2. ARTICLE OF MANUFACTURE. To entitle an applicant to a patent for an article of manufacture, it must appear that he has added a new product to the art, differing from those that preceded it not merely in degree of usefulness or excellence, but in kind. *In re McNeil, 141. 3. Patentable COMBINATION.-A patent for a mechanism consisting of two or more elements is not necessarily invalid as an aggregation because there is no direct coaction between the elements where such coaction comes to produce a unitary result through the mediation of the operator or the operating force. Krell Auto Grand Piano Co. of America v. Story & Clark Co. et al., 246. 4. IN RE MCNEIL CONSTRUED.-The decision in in re McNeil (C. D., 1902, 563; 100 O. G., 2178; 20 App. D. C., 294) is based on the ground that the coaction between the improved element of the combination and the other elements PATENTABILITY-Continued. thereof was not different from that between the corresponding elements of PENDING APPLICATIONS. See Anticipation, 1, 2; Interference, 6. PIONEER INVENTION. 1. DOCTRINE OF EQUIVALENTS.-The Welsbach patent, No. 837,017, for "a pyrophoric alloy containing cerium alloyed with iron, as and for the purposes described," Held to cover a pioneer invention and is entitled to that liberal application of the doctrine of equivalents which is usually accorded to such patents. Treibacher Chemische Werke Gesellschaft mit beschrankter Haftung v. The Roessler & Hasslacher Chemical Company, 344. 2. SAME-EQUIVALENTS-NOT RESTRICTED TO NAMED ELEMENTS EXCEPT BY SPECIFICATION."Numerous authorities sustain the proposition that when, as here, a pioneer patentee claims an alloy of one or more rare-earth metals with one or more non-rare-earth metals, he is not restricted to named varieties of either, unless he has himself restricted his claim by something in his specification, as Welsbach did, on the rare-earth side of the combination by the statement that in his alloy cerium is an essential. Winans v. Denmead, 15 How., 300.” (Matheson v. Campbell, C. D., 1897, 390; 79 O. G., 685; 78 Fed. Rep., 910; Panz v. Battle Island Paper Company, 138 Fed. Rep., 48, explained and distinguished.) Id. PRELIMINARY STATEMENT. See Interference, 10; Priority of Invention, 3. ACT OF JUNE 18, 1874-NOT REPEALED BY COPYRIGHT ACT.-Held that the copyright Act of March 4, 1909, did not repeal the act of June 18, 1874, providing for the registration in the Patent Office of prints and labels. Opinion of the Attorney-General, 95. PRIOR PATENTS. See Anticipation, 3; Construction of Claims, 1, 2, 6; Earlier and Later Patents. PRIOR REGISTRATION OF TRADE-MARKS. See Anticipation, 4; Registration of Trade- Marks, 1, 8. PRIORITY OF ADOPTION AND USE. See Abandonment of Trade- Mark; Similarity of Marks, 1. TRADE-MARKS-REPRESENTATION OF A Cow FOR CHEESE-VALID.-"I am inclined to hold that if Lawrence & Son can clearly establish priority of adoption of the representation of a cow as a trade-mark for cheese and show continuous use from 1876 to the present time such mark should be held valid. Such longcontinued use by a user of a trade-mark should resolve all doubts as to its validity in favor of the user." W. A. Lawrence & Son v. The Licking Creamery Company, 76. PRIORITY OF INVENTION. See Abandoned Experiments, 1, 3, 4; Anticipation, 2; Concealment of Invention, 2; Construction of Claims, 11; Employer and Employee; Interference, 1, 2, 8, 9; Right to Make Claims, 2. 1. Diligence.-B. Held lacking in diligence at the time S. entered the field and subsequent thereto and priority properly awarded the latter. *Barcley v. Schuler, 109. 2. CONCEPTION-Disclosure.-Where D. filed an application on January 9, 1904, and P. claimed conception January 1, 1904, and disclosure February 11, 1904, but the testimony establishes that P. had prior to D.'s filing date only a vague conception that a certain result could be obtained without disclosing |